I.

Intentional Torts a. Definition Intent 1. D does act volitionally and deliberately desiring or wanting to bring consequences (the invading of a Plaintiffs protected interest) 2. D does an act knowing to a substantial certainty that a particular result will occur (invading the Ps protected interest) 3. An intent may be shown through actions and/or words a. Insanity and infancy are not a defense if one can show intent (have to show that they couldnt form the intent) in a civil action, however, in a criminal action they do not have to prove intent 4. Transferred IntentIntent that had been shifted from the originally intended wrongful act to the wrongful act actually committed, and the result must be immediate and direct. a. Applies to: i. Assault ii. Battery iii. Trespass to land iv. Trespass to chattel v. False Imprisonment vi. DOES NOT APPLY TO IISED and conversion b. Battery 1.

A battery is the intentional causing of a harmful or offensive contact with the body of another person, or contact with something that is so closely associated with that person that it becomes an extension of that person.
a. b. c. Harmful or offensive touching is determined by reasonable objective person standard. D does not have to be aware of the harm at the time When a Defendant commits a battery, and the resulting injuries is more extensive than a reasonable person might have anticipated, the D will still be liable for those injuries.

c.

Assault 1. intentional act by D that puts P in reasonable apprehension of an imminent battery a. Do not need actual harm, only reasonable apprehension of imminent harm b. Fear is not required c. Imminent batteryP is aware of Ds action at that moment and battery could occur at that moment. d. Words in themselves, no matter how threatening, does not constitute an assault if not accompanied by an threatening action

d.

False Imprisonment 1. False Imprisonment is the intentional restraining and confining with boundaries of another person by force or threat of force, and the person must be aware of the confinement. a. If the person is passed out drunk and is placed in a room that is locked, he is not aware of his confinement and therefore is not falsely imprisoned. b. If he is injured during his confinement, awareness is not necessary for false imprisonment.
Intentional Infliction of Severe Emotional Distress 1.

e.

One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.
a. b. c. Intent Extreme and outrageous behavior (would offend a reasonable person) Causation between the conduct and the distress

f.

Trespass to Land: 1.

Is the intentional entry onto the land of another, without consent, damages are presumed a. Defenses: i. Private necessity 1. Can trespass to save his life, but if damages are made, the D is liable for all damages Public necessity Firefighters destroying your house to save the block, absent local legislation to collect, they are not obligated to pay.

g.

Trespass to Chattels: 1. Intentional interference/meddling with anothers lawful possession of a chattel causing harm a. Chattel: movable or transferable personal property b. Intangible property includes: literary, scientific invention, trade secrets c. Must show actual damages or substantial deprivation d. Electronic touching is still touching (CompuServe v. Cyber Promotions) 2. Committed when a. Chattel is impaired as to its condition, quality or value b. The possessor is deprived of the use of the chattel for a substantial time c. Bodily harm is caused to the possessor or harm is caused to some person or thing in which the possessor has a legally protected interest. d. Harm can be to reputation and goodwill of a company.

h. Conversion 1. Conversion is the intentional exercise of dominion or control over an item that so interferes with the rights of another to control it that it requires payment of the full value of the chattel. a. When D takes an item that doesnt belong to him, he intends to do so because he desired the result of his action. b. D also exercised control over the car (item) when he crashed the car (item) c. When D acts in such a way, he is liable to pay for the chattel for its full value.
Ways to convert chattel i. Acquiring possession i.e. stealing ii. Damaging or altering iii. Using it iv. Receiving it i.e. purchase item from a thief v. Disposing of it vi. Misdelivering it vii. Refusing to surrender it e. Differs from trespass to chattel by the degree of interference. f. Good faith does not remove liability for conversion. The pathway to tort hell is paved with good intentions i. A good faith purchaser who buys stolen property without knowing it is stolen, may be protected _________________________________________________________________ II. DefensesLegally recognized excused for conduct that would have otherwise been a tortious act. a. Consent i. Can be a defense to any tort 1. Express subjective 2. Impliedfacts looked at from perspective of D. objective standard used. 3. Medicalonly if immediately life threatening and patient is unable to give consent. a. Withdraw of consent means that physician must conduct new informed consent discussion, because he cannot continue to rely on previously given consent 4. Consent violated by Fraud ii. When playing a naturally dangerous game a player only consents to the normal and physical contacts of the game. iii. Good faith actions to not create consent. (Mohr v. Williams) dr. performed non-life threatening surgery on P without Ps consent. iv. Consent is canceled when given as a result of fraud or deceit (De May v. Roberts) d.

b. Self defense the privilege to defend yourself against someone who you honestly believe is about to inflict serious bodily harm against you. You may use equal but not greater force to stop the event from occurring to you.

c. Defense of others stand in the shoes of another, some mistake is allowed but not too much. You will be responsible as the person you are defending. i. These two privileges allow the actor the right to use a necessary amount of force, without escalation. Excessive force cannot be used, and the force used must be withdrawn when the treat is over.
d. Defense of Property 1. Similar principles as those of self-defense 2. Reasonable force: value of life and property is greater than the right to exclude (Katko v. Briney) 3. Deadly force a. Majority: never 4. Intruder privilege to remain if necessary to save their life 5. Limited to unlawful intrusion Recovery of Property (Chattels) i. Factors 1. Wrongful possession by P 2. Must be in fresh pursuit 3. Prompt discovery by D 4. Demand by D for return of property (not always necessary) a. Demand not required when it would be useless 5. Reasonable force allowed. ii. No reasonable mistake iii. Reentry upon real property 1. Minority allows states to re-take land by force. Shopkeepers privilege 1. A merchant that reasonably believes a customer has stolen merchandise may reasonably detain that person to recover the property. a. Allows for reasonable mistake and reasonable force b. Elements i. Reasonable belief P took something ii. Reasonable detention (can use reasonable force on or near the premises) Necessity i. Public necessity to destroy property. (greatest good for the greatest number) 1. Public official does not have to be the one to make the decision 2. Must clearly prove necessity in every case 3. Surocco v. Geary- destroyed Ps house to stop a fire spreading through town. 4. Dont have to pay damages ii. Private Necessity 1. Damage to anothers property to save more valuable personal property a. Limited and Qualified b. D chooses his property over Ps c. D is not a tortfeasor but has to pay for Ps damages

e.

f.

g.

h.

Discipline i. Parents are allowed to exercise reasonable force or restraint upon their children without being liable for damages. 1. Factors to decide appropriateness a. Gender b. Age c. Condition of child d. Nature of the offense e. Motive f. Influence of the childs conduct as an example to other children g. Reasonable necessity of confinement or force 2. Privilege extends to people who are temporarily responsible for the children ii. Teachers 1. Predicated on the need to retain reasonable order within the classroom 2. Discipline may be appropriate even if the parents object to the types of discipline 3. Instructor will be held liable for the use of excessive force 4. Factors to consider a. Nature of punishment b. Conduct of the student c. Age and physical condition of the student d. Motive of the teacher

I.

Negligence: a. is the failure to use reasonable care under the circumstances. There is a duty to act reasonably under the circumstances, and failure to do so is a breach of that duty. Then there must be causation which consists of cause in fact and proximate cause, and there must be injury.
b. Must prove: (meet all requirements) i. Duty- D has a legal obligation to P not to negligently injure P ii. Breach- D has failed to use reasonable skill and care iii. Causation- D must be the actual cause and D must be the proximate cause iv. Damages- P has suffered actual harm c. Learned Hand Negligence formula: PL > B = negligence i. P= probability of event occurring ii. L= gravity of resulting harm/injury iii. B= efforts/costs/otherwise by D to have avoided harm.

iv. Social host bar owners and commercial establishments have a duty to protect third parties, and are in breach of that duty if they negligently serve alcohol to someone who is visibly intoxicated. 1. If they dont serve then they are not in breach of that duty v. Creating a duty where it didnt exist when someone does not have a duty but acts as if they do, they can create a duty. The breach of that duty amounts to negligence. vi. Duty

vii.

viii.

ix.

x.

xi.

1. Mental capacity is of a normal person, skill, experience, knowledge and intelligence a. Child performing adult activity = adult standard i. Child driving a car, motorcycle, boat, etc b. A blind or deaf person has its own reasonable person scale c. Rule of 7 (negligence in a child) i. 1-7, 7-14, 14-21 Breach 1. Breach is simple, the breach of a duty is a breach. a. Direct Evidence b. Circumstantial Evidence c. Res Ipsa Loquitur d. Negligence per se Causation 1. Cause in fact But for test 2. Proximate we deal with Foreseeability of the harm. a. If the harm caused due to the negligence, then there is proximate cause. 3. Cardozo Palsgraff analysis X was a foreseeable plaintiff, and X owed a duty to all foreseeable plaintiffs in the zone of danger, and Y falls into this category 4. Andrews view in Palsgraff of direct cause - the negligence of X would certainly cause them to be liable Professional Duty (Day Care or any other professional place) 1. The day care has a duty as a daycare center to act reasonably when taking care of children. Part of the duty is to be sure that cameras (lighting on steps at theatre) are working properly to be able to look back and see what happened. When the cameras dont work, then there is a breach because there is no direct or circumstantial evidence. In that case, you apply Res Ipsa Loquitur (RIL). RIL (the thing speaks for itself) 1. The apply RIL, the plaintiff must show: a. The harm that occurred is the kind that typically does not occur without negligence b. P must show that the D was in exclusive control of the instrumentality (The daycare was in exclusive control of the child and whatever caused the injury at the time, and had a duty to watch the child) c. And that the P was not negligent. 2. The plaintiff only needs to show that it was more probably than not, they dont have to show certainty. 3. The jury will be left to decide if the professional place is liable or not. Elements of Causation 1. Cause in fact:

II.

III.

a. There must be cause in fact, which can be shown by the but for test. (But for the daycares apparently negligent actions, the child would not have harmed his eye). 2. Legal Cause (Proximate Cause) a. It is foreseeable that a child not properly watched over at a daycare center will be injury in anyway, including his eye. 3. Cardozo Palsgraff Analysis: a. There was a duty owed to all the foreseeable plaintiffs, which are all the children (patrons at a business) in the danger zone. i. The daycare owed a duty to the child, and they breached that duty when they were negligent and the child was injured 4. Andrews Palsgraff Analysis: a. Holds the negligent party liable for all direct causes resulting from the negligent act, the daycare would be held liable. Negligence Per Se a. Negligence per se is when a violation of a statues creates negligence. i. In order to be applied: 1. The injured party must be within the class the statute is intended to protect 2. The injury must be the type that the statues was meant to prevent 3. And, there also must be a cause between the violation and the injury incurred. ii. The statute is most likely intended to protect the general public from someone or something that is not supposed to occur. 1. It would also seem reasonable that the statute could be in effect to protect as a matter of public policy. 2. The injury sustained while the D is in the scope of injury that the statute was intended to prevent and the causation would apply because of the negligent driving (smoking, breaking of the law) by way of statute violation. Negligence by the entire hospital staff (Alternative Liability/Causation) a. When the party is injured as a result of the negligence of one of many parties but it is undeterminable which one actually committed the act which caused the injury, the P may sue all of them and switch the burden to the defendants. i. The shift is reasonable considering the policy considerations at hand 1. There is an injured party and but for negligence of one of the parties the injury would not have occurred ii. Yabarra case, showed that the doctors wouldnt admit to which one of them actually caused the injury or in reality truthfully did not know, but it forced the burden of proof to shift from the plaintiff to the defendants in order to point the finger at that actually negligent doctor.

IV.

V.

VI.

iii. It is much more fair to hold the entire hospital staff that conducted the surgery or was present to be able to determine the actual offender because it would leave the P the ability to collect payment for the damage caused. Lack of consent by Doctor a. Consent is a defense to intentional torts, and must be obtained by a doctor before examining a patient. i. Consent can be obtained by language, behavior, conduct, together with the circumstances of the situation. ii. If there is no consent by the doctor, it is a battery. 1. The ways consent may be obtained: a. By the parents of a minor b. Making a phone call to the parents if the parents are not present c. Minors cannot give consent, especially little children. 2. Implied consent acquisition: a. There are 4 elements required to obtain implied consent i. The patient is unable to consent ii. Treatment is needed to prevent serious injury 1. Facts must state that the injury was serious! iii. The treatment is urgently needed iv. And non consent is not known. 3. Doctor MAY NOT obtain implied consent if the treatment were not urgently needed. Lack of informed consent by Doctor a. Not getting informed consent amounts to negligence. The doctor has a duty to follow whatever theory is applied in their state, physician or patient based. i. Physician based theory: 1. Majority view, the doctor has a duty to inform the patient of all alternatives, side effects, etc. that a reasonable physicial would want to tell a patient. ii. Patient based theory: 1. When a doctor must tell the patient everything a reasonable patient would want to know. iii. If the doctor obtained implied consent, then he could not inform anyone of other possibilities regarding the line of treatment. In that case, the doctor will not be found negligent in treating the patient. Contributory Negligence a. Talking on the phone while driving on a rainy night: i. Any reasonable person has to know that when its raining very hard, they should not be talking on the phone because something bad is bound to happen. ii. The person talking on the phone was negligent in her own part and therefore contributory negligent. 1. One can argue that the icy roads were an intervening factor that would relieve liability with respect to the Trucker.

2. It cannot be said that her talking on the phone on a rainy night was a superseding factor that would cut off liability to the truck driver. 3. It cannot be conclusively said that but for her action that she would not have struck the crate any way because of the icy roads and the rain. VII. Act of God a. Acts of God are said to provide situations in which one could not reasonably foresee. Whether the storm was a freak storm or a normal setting for the winter time would help in determining this. In both situations, there is no instance that would but off the liability of the trucker. Rescue Doctrine a. It could be foreseeable that when someone pulls over to save someone that they may be injured because of the present conditions. i. Cardozo Palsgraff Analysis would say: 1. There was no duty to the injured person because the occurrence of the injury is so far down the line that it was not foreseeable. ii. Andrews Palsgraff Analysis would say: 1. The liability would apply because the chain of events was continuous up until the injury of the third party that stopped to help. Firefighters Rule a. A professional rescue person was performing his duty when he sustained his injuries. i. This is within his job description which makes it unlikely that the negligent person would be liable for the damages caused to the professional rescuer, even though the but for test would state otherwise. Lost Chance Doctrine a. A cause of action exists against a doctor where they are not the cause of the injury or disease, but were negligent in diagnosing and reduced the patients chances of recovery. b. The doctor will be held to the standard of a reasonable (same specialistOptomologist), and the prevailing standard of care in that area and the board which certified him. c. If the doctor can prove that he acted reasonably under the circumstances according to the prevailing standard of care for the same type of specialist, then the doctor will not be held liable, BUT i. Since the doctor was looking closely at the childs eye, he should have been able to find the eye disease at the early stages but failed to do so. ii. As a result, he failed to diagnose and treat the disease and did not notify the parents of the child (or person) of the fact. iii. A year or so later, the person is diagnosed and now suffers blurry vision d. Expert testimony would be needed here to strengthen the case for the child and prove even further that a reasonable specialist would have been able to find the disease in the early stages when the doctor initially checked the child. e. The lost chance doctrine will apply here, because the childs chances of recovery were greatly reduced, which is harm caused by negligence.

VIII.

IX.

X.

i. The negligent diagnosis must also have to be the cause in fact and proximate cause of the eye damage 1. But for the negligent diagnosis, the child would not have blurry vision. 2. It is foreseeable that negligently diagnosing a serious eye condition will result in damaged vision. a. The doctor owed a duty to the child, since the child was a foreseeable plaintiff in the zone of danger of the doctors negligent act. b. The doctor is the proximate cause of the damage caused by the disease and will likely be held liable for malpractice and pay damages for the childs loss of sight.
Strict liabiity The existence of a duty to elimate any risk of injury to a foreseeable plaintiff resulting from certain inds of activies, injury to the plaintiff, proximately caused by the attribute of te activity for which SL is imposed. Trespassing animals3 categories of animals to determine whether to hold an owner strictly liablefarm animals the owner is strictly liable for any harm done if it is a natural consequence of the escape of the livestock natural consequence did not include personal injury, EXCEPT if the owner had prior knowledge of a particular aggressive animal, then strict liability would apply property damages may be included domestic animals no strict liability EXCEPT if the owner knows of a particular dangerous propensity, then the owner is strictly liable . dangerous propensitymore dangerous than is normal for the species wild animals SL is imposed for ANY injury proximately caused by the wildness of the animal In regard to human entry: SL rules apply to lcensees and invitees and maybe to discovered trespassers. Undiscovered trespassers must prove negligenxe EXCEPT: if owner deliberately keeps a vicious animal, he may be liable to trespassersts under intential tort theory Abnormally dangerous activity Where a defendant engages in an abnormally dangerous activity and the plaintiff is injured as a actual and promisate result of that activity, the D will be strictly liable. Elements: Activity must create a reasonably foreseeable risk of harm Risk must be significant The risk can not be eliminated by the exercise of reasonable care The activity must not be common in the relevant community. Victims injuries do not depend on the actions of others besides of the defendant.

P can not recover under strict liability if participated meaningfully in activity, but maybe negligence. Defenses for strict liability Contributory negligence is not a defense to strict liability where plaintiff negligently puts himself in danger without deliberately acting in the face of a known risk Assumption of the risk is a defense Comparative fault - damages are reduced by plaintiffs proportional fault in causing his own injury - assumption of the risk

product liability deals with the liability of an entity that manufactures, sells, or furnishes a product that flows through the stream of commerce to someone who gets injured by that product usually includes commercial sells